BAHAMAS Law and Practice Contributed by: Adrian Hunt and Gabrielle Rahming, Graham Thompson
Enforcement of Foreign Arbitral Award Under the Arbitration (Foreign Arbitral Awards) Act The Bahamas, by way of the Arbitration (Foreign Arbi - tral Awards) Act (the “AFAA Act”), has given effect to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958) (“the New York Convention”), which allows foreign arbitral awards awarded in member states of the New York Convention to be enforced domestically. An application before the Supreme Court of the Com - monwealth of The Bahamas for the enforcement of a foreign arbitral award is made by a fixed date claim form along with a statement of claim. All such par - ticulars and evidence as may be necessary in rela - tion to such order or orders for enforcement must be included in the fix date claim form, statement of claim or affidavit, particularly: • the duly authenticated original award or a duly certified copy of it; • the original arbitration agreement or a duly certified copy of it; and • a translation of the award or agreement certified by an official or sworn translator or by a diplomatic or consular agent, if the award or agreement is in a language other than English. Further, as these proceedings would involve an order against a government department, the statement of claim should include a statement of the circumstances in respect of which the Crown liability is alleged, and the government department and officer of the Crown concerned with the stated allegation. The affidavit must be filed and served on all respondents. A respondent who wishes to oppose an application to enforce under the AFAA 2009 must file and serve an affidavit setting out the grounds upon which the enforcement of the award is opposed within 14 days from the date of service of the applicant’s affidavit. The leave application and an application for an order, or orders, for the enforcement of the award may be made simultaneously. The court may, at the time of hearing the leave application, make an order as to the enforcement.
There are circumstances upon which the court may refuse the enforcement of a foreign arbitral award, namely where it is proven that: • a party to the arbitration agreement is under some incapacity; • the arbitration agreement was not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the state where the award was made; • the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or the arbitration proceedings or was oth - erwise unable to present his or her case; • the award deals with a difference not contemplated by or falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration; • the composition of the arbitral tribunal, or the arbitral procedure, was not in accordance with the agreement of the parties or – failing such agree - ment, with the law of the state where the arbitration took place; • the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority in the state in which, or under the law of which, the award was made; • the award is in respect of a matter that is not capa - ble of settlement by arbitration; or • the enforcement of the award is contrary to public policy. There are also special considerations under CPR Part 65, and Sections 15 and 19 of the Crown Proceed - ings Act, to consider as the present circumstances concern potential proceedings involving the Crown. Service Outside of the Jurisdiction If in these circumstances a party must be served out - side of the jurisdiction, where a party is seeking to enforce a judgment or arbitral award CPR 7.2 (m) and/ or when a claim is made for interim relief in support of judicial or arbitral proceedings commenced – or to be commenced – outside the jurisdiction (CPR 7.2 (q)), proceedings may be served out of The Bahamas without leave of the court (CPR 7.2 (m) and (q)).
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